Mr. Stanislav Shchotka, Deputy Chairman of the HQCJ: “Taking qualification evaluation is a duty for a judge, but not coercion”
Some consider the number of qualification evaluation procedures to be thorns, and some think that the same procedure is repeated. After all, judges who left disciplinary track immediately take on the double burden of evaluation. Or not? Mr. Stanislav Shchotka, Deputy Chairman of the HQCJ, Chairman of the Qualification Chamber of the Commission, retired judge told about how many times an average judge could end up in the crosshairs of the High Qualification Commission of Judges and why some of them cannot pass the practical assignment.
“Some people believe that there are three selection stages, and they complain about the unworthy actions of the Commission that violates the order or procedure”
– Mr. Shchotka, can a second check for some of the judges be considered as punishment?
– According to law, qualification evaluation is a procedure that a judge shall take if: he participates in the competition; he is subject to disciplinary responsibility and the High Council of Justice as the body-punishing judges tells him, “You are removed from office, we send you to study in the National School of Judges, and in order to return, you must take qualification evaluation (in the law, this evaluation is a part of the disciplinary procedure). And there is a third case, which I call an extraordinary one. This is the qualification evaluation provided for in the “Transitional Provisions” of the Constitution. Is it a right or a duty? In the case of competition that is being conducted, it is a right. The judge came to us and expressed his desire to take part in the competition. At any time, a candidate has the right to stop participating in it, and thus the qualification evaluation, which is part of it, stops as well. Moreover, competitors may take part in two selections simultaneously if the selections differ in time.
In the disciplinary procedure, as in the procedure envisaged in Section XV, paragraph 161 of “Transitional Provisions” of the Constitution, it is a duty of a judge and a judge may not refuse to take part in it, otherwise, he would lose his powers.
– And the participants do the same tasks twice?
– Tasks differ in content, but the procedure of psychological evaluation is identical and it does not depend on specialization. Therefore, we decided: within a year from the time that the results of the check are finalized, they are valid for us, that is, there is no need to take a test again.
Those judges who took qualification evaluation in summer and decided to try themselves in one of the competitions should not worry about having to take the same procedures.
At the same time, those who want to take psychological testing again address us. Obviously, they are not satisfied with the result. Perhaps the case is that a candidate is afraid that some information about him will be taken negatively. We ask them how much time passed from our decision. If less than a year passed, then, of course, we refuse. We have already refused some of such candidates based on the rule enshrined in our regulatory legal acts. We consider that it is right to be guided by the first result that a person got.
Therefore, taking evaluation is a duty for the judge, but not coercion. In competition, he himself agrees to take qualification evaluation. If you want to participate, you are welcome, but you must go through all the necessary stages.
The law, in particular in the part relating to qualification evaluation, refers to two stages. For example, the first one is an exam, the second is an interview based on the results of examining dossier. By the way, the Commission is entitled to independently determine the order of the stages of the examination. It should be remembered and, until the law is amended again, it should not be brought up again.
Some people think that there are three selection stages, and they complain about the unworthy actions of the Commission that violates the order or procedure. It is as if the Commission has not yet completed the examination, has already started the second stage, psychological testing. In this regard, I say responsibly: the latter is not a separate stage of the competition.
– Psychological testing is included in the exam?
No. Such testing is introduced by the Commission with a view to forming a dossier as another means to establish in the course of the competition that a judge or a judicial candidate complies with the criteria of qualification evaluation. Therefore, it is not understanding the law that causes an aggravation of the situation as to taking qualification evaluation. And what is obvious for us needs to be clarified for someone, but the conflict still arises.
Despite this, we are ready to tell what each stage of the competition consists of, how the tasks are decoded and what personalized results look like.
“I will not rescue someone by abusing my post”
– Is it possible to intervene in this process?
– We say that maybe it is possible, but it is impossible to do that without leaving a trace. Next question: who needs it? Personally, I have no interest in doing it. I will not rescue someone by abusing my post.
After decoding the results of practical assignment taken on July 10 last year, it seemed to me that I personally knew one of two judges who did not score a passing grade. He is not a novice in the profession, he has been working for a long time. I recall that around 1998-1999 I went to the court in which he worked to provide methodological assistance. A judge who showed the insufficient level at checking had just started working then. It turns out, it was 20 years ago. So, I really did not expect him to have such a result. After all, the Commission provided sufficient conditions for judges to be able to show their level of professional competence: the database of test questions was made public in advance, practical assignments were not enormously difficult, employees of the Commission Secretariat helped to cope with natural anxiety in such cases.
Another judge did pass the practical assignment, although she got a rather high score at testing – 81.
“A judge may not formulate a decision based on the principle “Whatever comes to his mind”
– How often do you observe such contrast between testing and practical assignment?
– There is nothing strange in such inconsistency. After all, to put it simply, the test refers to the concept “to know”, and practical assignment concerns the concept “to be able to”. When these two indicators are combined, we get a more or less clear picture of the professional’s knowledge and how he can apply this knowledge. A mere understanding, of course, will not suffice: you need to have skills in formulating and writing a judgment. After all, it is a judge, not his assistant who is responsible for the judgment. Therefore, it is a practical assignment that shows who write decisions themselves and who are not, who cannot apply their knowledge, shape them in a procedural way, “pack” the decision, so to say. A judge may not formulate a decision based on the principle “Whatever comes to his mind”. What kind of judge a person is after this?
That is why 5 hours are given for the practical assignment. This is not an extremely difficult task and not an extraordinary situation. If once at the time I wrote the decisions of the commercial cassation court, I am now ready to easily give you a sample of such a decision following the structure without even thinking about what it should look like. However, according to the old version of the Commercial Procedural Code (briefly summarizes the content of the decision of the cassation court – author's note). So, in 3 minutes I told you what the cassation court decision should contain because I wrote them myself. Although writing is, of course, more difficult than speaking, but even if I forgot something, there are several months for preparation. And, in my opinion, if you write at least one court decision a week by yourself, then in 2-3 months you can improve your skills and score the required 60 points. And if you did not write judgments and the exam shows that you are unable to do it, perhaps you should change your profession. Moreover, the legal profession is so multidimensional that one can realize his potential in other spheres.
Anna Lyndina
Law and Business. 19.01—25.01.2019. - №2 (1404)
February 22, 2019
